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27 October 2011
In the case Commission of the European Communities v the European Parliament and the Council [2007] ECR I-8695 the European Court of Justice ruled that the following benefits should be paid to people who move from the UK to another country within the European Economic Area:
EC regulation 1408/71 allows the exporting of certain benefits for EEA nationals who are employed or self employed, as well as to members of their families, moving within the community.
You can be treated as an employed or self employed person if you pay, or have previously paid, or ought to pay national insurance contributions.
Prior to 1 June 1992 DLA, AA and CA were exportable, but after that date these were then classed as special non-contributory benefits, which were no longer exportable under regulation 1408/71. However recent case law has caused the Commission of the European Communities to review special non-contributory benefits classifications. As a result it issued amending regulations which removed DLA, AA and CA from the list of special non-contributory benefits.
The United Kingdom government objected to this, and requested that these benefits be added to the list once more. The Council of the European Union agreed to this. The Commission of the European Communities disagreed with this and appealed to the European Court of Justice.
The court held that DLA care component, AA and CA were not special non-contributory benefits and so were exportable under EC regulation 1408/71. DLA mobility component is still classed as a special non-contributory benefit and so is not exportable.
From 31st October 2011, the Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Miscellaneous Amendments) Regulations 2011 (SI 2011/2426) enables claimants on attendance allowance, carer’s allowance or the care component of disability living allowance, whose claims were disallowed following their move to another European Economic Area (EEA) State or Switzerland prior to 18 October 2007 (the date of the European Court ruling), to be paid benefit from the first benefit week after that date.
These regulations also amend the Social Security Contributions and Benefits Act 1992 to ensure that a person to whom either Regulation (EC) No 1408/71 or Regulation (EC) No 883/2004 applies shall only be entitled to an attendance allowance, a carer’s allowance or the care component of a disability living allowance when the United Kingdom (rather than another EEA Member State or Switzerland) is responsible under the EU Regulations for payment of sickness benefits to that person.
The DWP has issued guidance on these regulations (Memo DMG 27 /11).
You can find out more information on claiming disability benefits if you live in another European country and taking disability benefits to other European countries on the DirectGov website at www.direct.gov.uk.
The following decisions CDLA/496/2006, CDLA/2002/2006 and CDLA/2106/2006 [2009] UKUT 286 (AAC) were referred by the upper tribunal to the court of justice of the european union for a preliminary ruling on whether DLA mobility component is an 'exportable' benefit.
This ruling has now been made as Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael Taylor v Secretary of State for Work and Pensions - (Case C-537/09) - 5 May 2011.
The European Court of Justice has decided that DLA mobility component stands as a separate benefit to DLA care component and is classed as a special non-contributory benefit. As a result DLA mobility component cannot be exported.
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